In this post back in June I discussed an article written by Colonel Andrew Williams, USAF, about the need to preserve a commander’s authority to review, and sometimes disapprove, the findings of a court-martial. The central theme of Colonel Williams’ article was the fact that court-martial panels are not juries. Unlike any jury in America, a panel isn’t randomly selected, a panel can be as small as three people, and a panel can convict with the votes of a mere two-thirds of its members.

I just read this story from the Omaha World Herald about a jury’s deliberations that would have been impossible in a court-martial:

A jury wrestled long and hard with whether Anthony Utterback acted in self-defense the night he trailed his wife and stabbed the man who had been having an affair with her, a juror said.

The jury of six men and six women initially voted 10-2 to convict Utterback of manslaughter in the slaying of Ryan P. O’Donnell in O’Donnell’s front yard.

But in nine hours of deliberations, the two holdouts slowly persuaded their fellow jurors that the state hadn’t proven that Utterback had done anything but act in self-defense, said the juror, a 61-year-old retired Omahan.

As the courthouse closed Friday, the jurors acquitted Utterback of all charges in the Feb. 14 stabbing near 40th and Y Streets.

Had that jury been a court-martial panel, the accused would have been convicted on the first vote.

He would have been convicted even if twice as many people initially believed him innocent.

7 Responses to “Remembering that a court-martial panel is no jury”

  1. RY says:

    I’ve been thinking about this more lately and wondering why we have two-thirds in the military.  Anyone know the reason why?  If the reason for Art 60 has waned over the years, why hasn’t the less-than-unanimous waned?  We fight all over the world to ensure freedom and support our constitution and yet we can be convicted of serious matters with less persuasion.  

  2. Cap'n Crunch says:

    I think the reasoning is to ensure that the panel reaches a verdict, to ensure expeditiousness, particularly in the case of a deployed situation.  Keep in mind… it works both ways… in the civilian system, you need unanimous verdicts for both guilty and not guilty.  In the military, if slightly more than 1/3 say not guilty, that verdict stands.  In my experience, panels do not simply go behind closed doors, vote, and come back.  I have yet to see a case where a verdict is reached in a period of less than several hours, and the opportunity for all the members views to be shared with each other.  That said, if there are hold outs, there is likely not the same incentives to re-assess individual members views.

  3. stackhouse says:

    Cap’n – you should research quick jury verdicts.  I had one come back in something like 7 minutes – guilty.  As a defense attorney – it was horrible.  We researched for a mistrial, there are cases in the military that came back quicker.  I found it hard to believe that members could review the 13 pages of instructions, deliberate, so a SECRET written ballots, tally them, and fill out the worksheet.  Moved for a mistrial – denied.  Moved for the judge to at least ask if they members did a secret written ballot – denied. (Had they not, it’s a UCI issue).  Appeal denied.

  4. Bill Cassara says:

    As I have listened to all of the proposed changes to the manual, such as making the Article 32 more akin to a civilian probable cause hearing, taking the case away from commanders, etc., my response has been the same. Fine.  Just give me 12 randomly selected jurors and require a unanimous verdict.   

  5. phil cave says:

    And BB, ones who are not selected by the commander who decided to prosecute my client, and for whom the prosecutor works.

  6. Anonymous Air Force Senior Defense Counsel with Initials NM says:

    RY – I agree with Cap’n Crunch.  But I think the reason “why” is even deeper than just being expeditious.  I’ve always been of the opinion that the primary goal of the military justice system should be preserving good order and discipline in the military.  The goals of the civilian system are different (whether it’s preserving justice, establishing legitimacy of the government, etc).
    I believe a 2/3rds vote helps preserve good order and discipline by being expeditious while being fair to both the accused and the govt.  Correct me if I’m wrong, but I thought in the civilian system, it had to be unanimous for an acquittal as well?

  7. J says:

    Concur. In the civilian system, a 10 to 2 vote can’t end deliberation, because it’s not unanimous. If the jury deadlocks then it’s a mistrial and the whole thing happens again. I view this as a fair trade off in a system that gives something to both sides.